Opinion
Case No. 1:99cv519
May 29, 2001
OPINION
This is an action for declaratory judgment on a commercial automobile insurance policy. Both plaintiff National Union Fire Insurance Company ("National Union") and defendants Owens Corning, Inc. ("Owens Corning") and Falcon Foam Corporation ("Falcon Foam") have filed motions for summary judgment. Third-party defendant Gulf Insurance Company ("Gulf") has joined in the position taken by Owens Corning. For the reasons that follow, the motion of plaintiff National Union (dkt # 57) is DENIED. The motion of defendants Owens Corning and Falcon Foam (dkt # 54) is GRANTED.
I. FACTS
This action arises out of an incident that occurred on the property of defendant Falcon Foam. Falcon Foam, formerly a subsidiary of Owens Corning, manufactures and sells expanded polystyrene foam products used for insulation, flotation and packaging. At the time of the incident, National Union Fire Insurance Company insured Owens Corning and Falcon Foam under a commercial automobile insurance policy. Third-party defendant Gulf Insurance Company insured Owens Corning and Falcon Foam under a commercial umbrella and excess policy.
Falcon Foam produces foam products in response to custom orders. It manufactures and ships those products according to the timing requested by the buyer. It does not maintain an inventory of final products and has no storage facilities for finished products. Instead, once an order is received by Falcon Foam, it is manufactured in accordance with buyer specifications and timing. The completed products then are loaded onto a semi trailer for delivery and Falcon Foam contacts a shipping company to pick up and deliver the loaded trailer to the buyer.
On Wednesday, September 9, 1998, Falcon Foam manufactured the foam block used to produce a custom order for Millard Refrigerator Services of Louisville, Kentucky. On Thursday, September 10, 1998, that custom order was cut and packaged. Also on September 10, 1998, Falcon Foam notified the independent shipping company with which it contracted (Darjon Express) that the order would be ready on September 11, 1998 for pick up and transport to Louisville. On the morning of Friday, September 11, 1998, the order was loaded onto a waiting Darjon trailer. Darjon was advised that the order must be delivered to Millard by the morning of Monday, September 14, 1998.
On Sunday, September 13, 1998 at 9:30 p.m., Rick Fisk, Sr. went to the Falcon Foam facility to pick up the load on behalf of Darjon for delivery to Kentucky. Rick Fisk, Jr. accompanied his father, an employee, to the Falcon Foam plant because Fisk, Jr. was familiar with the layout of the facility and previously had picked up loads at the site.
The Fisks had been given the trailer number that was supposed to correspond with the load they were to deliver. Rick Fisk, Sr. testified that they found only one Darjon truck in the lot that matched the Kentucky destination specifics, but the trailer number was wrong. Rick Fisk, Jr. opened the trailer to make sure they had the correct trailer and to retrieve the bill of lading, which was required to be in the vehicle before the vehicle reaches a road scale. Fisk, Sr. testified that when Fisk, Jr. entered the trailer, he asked his father to light his cigarette lighter so that Fisk, Jr. could see better. When Fisk, Sr. did so, the fumes in the trailer exploded, badly burning both Fisks. Rick Fisk, Jr. testified that he did not ask for a light, but that he believed his father was trying to give him better light to read. Fisk, Jr. testified that he had entered the trailer with the sole purpose of confirming that he had the correct load for transport to Kentucky. No evidence suggests that the Fisks were at the trailer for any purpose other than identifying and then transporting the load to be delivered to Kentucky.
The Fisks brought suit in state court against Falcon Foam and Owens Corning, alleging negligence and premises liability. The lawsuit was settled for $3 million, of which Owens Corning, National Union and Gulf Insurance each paid $1 million, subject to later adjudication of policy rights.
The present case involves the parties' dispute regarding the appropriate allocation of the $3 million settlement among National Union, Owens Corning and Gulf. National Union brought the instant action against Owens Corning and Falcon Foam seeking a declaratory judgment that the Commercial Automobile Policy issued by National Union did not cover the accident and seeking to recover the $1 million paid by National Union. Owens Coming/Falcon Foam filed a counter-complaint against National Union and a third party complaint against Gulf. In the counter-complaint, Owens Coming/Falcon seek a determination that the underlying claim was covered by the Commercial Automobile Policy and that National Union, as the automobile insurer of the trailer, is liable for the first $2 million of the settlement plus defense costs, less $100,000 self insured retention. In the third party complaint, Owens Coming/Falcon Foam seek a declaration that in the event the court finds that the automobile policy does not cover the claims, Gulf be declared responsible for all amounts in excess of Owens' $1 million general liability self insured retention.
The matter presently is before the court on cross motions for summary judgment filed by National Union and Owens/Falcon seeking a determination of National Union's liability under the Commercial Automobile Policy.
II. DISCUSSION
The National Union automobile policy at issue in the present case provides in relevant part:
We will pay all sums an insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.
In their cross motions for summary judgment, the parties raise two issues: (1) whether Michigan or Ohio law controls the case; and (2) whether the Fisk's actions amounted to the use of a covered auto under the policy. The parties agree that this was a covered vehicle.
A. Standard of Review
On a motion for summary judgment, the court must consider all pleadings, depositions, affidavits and admissions and draw all justifiable inferences in favor of the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The party moving for summary judgment has the burden of pointing the court to the absence of evidence in support of some essential element of the opponent's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Street v. J. C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). Once the moving party has made such a showing, the burden is on the nonmoving party to demonstrate the existence of a genuine issue for trial. Id.
In order to prove that a triable issue exists, the nonmoving party must do more than rely upon allegations, but must come forward with specific facts in support of his or her claim. Id. After reviewing the whole record, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one sided that one party must prevail as a matter of law." Booker v. Brown Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). "'[D]iscredited testimony is not [normally] considered a sufficient basis'" for defeating the motion. Anderson, 477 U.S. at 256-57 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512 (1984)). In addition, where the factual context makes a party's claim implausible, that party must come forward with more persuasive evidence demonstrating a genuine issue for trial. Celotex, 477 U.S. at 323-24; Matsushita, 475 U.S. at 586-87; Street, 886 F.2d at 1480.
B. Conflict of Law
National Union contends that Ohio law governs this case. Owens Corning and Falcon Foam, in contrast, contend that Michigan law controls. In the alternative, both parties suggest that the result is unchanged regardless of the law that is applied.
National Union is a Pennsylvania company with its principal place of business in New York. Owens Corning is incorporated in Delaware with its principal place of business in Ohio. Falcon Foam, where the accident occurred and where the particular vehicle was principally housed, is located in Byron Center, Michigan. The insurance contract was signed in Ohio by representatives of Owens Corning, and the policy provided insurance coverage to Owens Corning vehicles operating out of facilities in a range of states, including the Falcon Foam facility. Owens Corning is the named insured under the policy. National Union and Owens Corning both do business in almost all states.
When a choice of law issue arises in a diversity case, the federal court must apply the forum's choice-of-law rules. Mahne v. Ford Motor Co., 900 F.2d 83, 85 (6th Cir. 1990). In Chrysler Corp. v. Skyline Indus. Serv. Inc., 448 Mich. 113, 124 (1995), the Michigan Supreme Court rejected the antiquated and rigid approach of resolving contract conflicts by the "law of the place of contracting." Instead, the court adopted the rules set forth in the Restatement 2d of Conflict of Laws §§ 187, 188.
Section 187 of the Restatement addresses situations in which the parties have, in their contract, selected a choice of law provision. This section of the Restatement was the principal focus of the Skyline decision. Section 188 presents a list of factors relevant to contract disputes that should be considered in determining which state, with respect to the issue, has the most significant relationship to the transaction and the parties under the principles stated in section 6 of the Restatement 2d of Conflict of Laws: (a) the place of contracting; (b) the place of negotiation of the contract; (c) the place of performance; (d) the location of the subject matter of the contract; and (5) the domicile, residence, nationality, place of incorporation and place of business of the parties.
Section 6 of the Restatement 2d of Conflict of Laws provides that under general conflict of laws principles, a court should consider: (a) the needs of the interstate and international systems; (b) the relevant policies of the forum; (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; (d) the protection of justified expectations; (e) the basic policies underlying the particular field of law; (f) certainty, predictability and uniformity of result; and (g) ease in the determination and application of the law to be applied. Section 188 further provides that "[t]hese contacts are to be evaluated according to their relative importance with respect to the particular issue." Section 188 reformulates these factors to be more directly applicable to contract disputes, but the provision expressly makes the central determination under both provisions which forum has the most significant relationship to the transaction and the parties with respect to the issue in dispute.
Neither party contends that section 187 is at issue in this case. No choice of law provision is evident in the insurance contract.
National Union argues that the factors of section 188 favor treating Ohio as the state with the most significant relationship to the contract. Specifically, it contends that Owens Corning negotiated and signed the agreement in Ohio, that the accident was reported to Owens Corning in Ohio and to National Union from Owens Corning in Ohio. It acknowledges, however, that Owens Corning used a Detroit office (Marsh McLennan) to negotiate the National Union contract.
While this appears to be a somewhat close question, I conclude that Michigan law should control. National Union's arguments tend to address the contract generally rather than the factors having most importance to the particular issue involved in this dispute. Section 188 of the Restatement, however, provides that "[t]he rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6."
Moreover, National Union's argument principally rests on the place of contracting. The contract admittedly was signed by Owens Corning in Ohio. But exclusive reliance on the place of contracting was rejected by the Michigan courts as too rigid and antiquated.
In the instant case, the contract was negotiated through an insurance agency located in Michigan. In addition, the contract was to be performed in a variety of locations around the country, but with respect to the coverage for the Falcom Foam facility, the precise issue in this case, that performance was centered in Michigan. The location of the precise subject matter, the trailers used by Falcon Foam, were principally located in Michigan and the accident occurred in Michigan. Further, the contract contained specific Michigan riders containing contractual provisions to comport with Michigan law, suggesting that National Union expressly contemplated being obligated by the requirements of Michigan law. Indeed, the inclusion of various endorsements comporting with various states' laws strongly suggests that National Union understood that it was subject to the laws and statutes of the states where coverage was offered. Moreover, the place of signing of a contract that was to apply nationally seems to have less importance to the specific aspect of this dispute, which has to do with the insurance coverage of Michigan residents following a Michigan incident. See RESTATEMENT 2d OF CONFLICT OF LAWS, § 188(a) (requiring that contacts be evaluated according to their relative importance with respect to the particular issue). Finally, while neither Owens Corning or National Union is incorporated in Michigan, neither are they incorporated in Ohio. Both do business in all states. Owens Corning admittedly has its principal place of business in Ohio, but the facility to whom the trailer was assigned, Falcon Foam, operated only in Michigan and the accident occurred here.
Upon review of all factors, I conclude Michigan has the most significant relationship to the transaction and the parties with respect to the particular issue in the contract. Regardless, however, I am persuaded that Ohio law on this issue mandates the same result as Michigan law.
B. Coverage under the Automobile Policy
As I have noted, the coverage question before this court is limited to whether the bodily injuries to the Fisks were caused by an accident resulting from their "use of a motor vehicle" within the meaning of the automobile insurance policy. Michigan has taken an expansive view of the "use as a motor vehicle" requirement. See Pacific Employers Ins. Co. v. Michigan Mut. Ins. Co., 452 Mich. 218, 549 N.W.2d 872 (1996). In Pacific, the Michigan Supreme Court held that injuries to a school student that arose ten minutes after being dropped off at the wrong stop arose from the use of the school bus because use of a school bus was defined as "the carrying of persons in connection with school attendance." The Pacific court held that under Michigan law, while the automobile need not be the proximate cause of the injury, the still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle. 549 N.W.2d at 875 (quoting Kangas v. Aetna Cos. Sur. Co., 64 Mich. App. 1, 17, 235 N.W.2d 42 (1975)). The court recognized that "'[u]se' is defined more broadly than the mere carrying of persons and, while it encompasses the `operation' of the [vehicle], it may also include a range of activity unrelated to actual driving." Id. at 876.
Here, as in Pacific, the acts of the Fisks were intimately connected with the transportation of cargo on the insured trailer, even though the trailer was not yet hitched and driving. These acts, while not directly including the hauling of the trailer, are closely connected to and necessary to the hauling of the trailer. No dispute exists that the Fisks were at the Falcon Foam plant strictly to pick up the designated trailer and transport it to Kentucky. They had tentatively concluded that the trailer involved in the incident was the one they were going to transport, and they were inside that trailer solely to confirm they had the right vehicle and to obtain the bill of lading so that Fisk, Sr. could have it in the tractor of the transport, as required by law. Fisk, Jr. was inside the trailer and Fisk, Sr. was leaning into the trailer at the time Fisk, Sr. lit the lighter. Fisk, Sr. lit the lighter for the purpose of illuminating the bill of lading necessary for transport. The Fisks had no purpose in being in the trailer except to further the transportation of the vehicle to Kentucky. As a result, Pacific militates in favor of coverage under the automobile policy.
This result is consistent with numerous other Michigan cases. See Putkamer v. Transamerica Ins. Corp., 454 Mich. 626, 563 N.W.2d 683 (1997) (insured entitled to automobile policy coverage for slip and fall incurred in entering parked motor vehicle with intention to travel in it); Gajewski v. Auto-Owners Ins. Co., 414 Mich. 968, 326 N.W.2d 825 (1982) (summarily reversing court of appeals and holding that injury caused by explosive device triggered by turning of ignition key was sufficiently connected to use of a vehicle to warrant coverage under automobile policy); Jones v. Tronex Chem. Corp., 129 Mich. App. 188, 341 N.W.2d 469 (1983) (pedestrian entitled to recovery from automobile insurer for injuries his eye sustained when city bus drove through a puddle containing hazardous chemicals); Smith v. Community Serv. Ins. Co., 114 Mich. App. 431, 319 N.W.2d 358 (1982) (automobile policy provided coverage for injuries sustained by person riding on inner tube being towed by insured vehicle, regardless of negligent or illegal conduct in doing so).
In contending that the accident does not fall within the automobile coverage under Michigan law, National Union relies extensively on a single Michigan Supreme Court case, Vanguard Ins. Co. v. Clarke, 438 Mich. 463, 475 N.W.2d 48 (1991). The Vanguard court interpreted an exclusion contained in a homeowner's policy for damages arising out of use of a motor vehicle. Vanguard involved coverage for three deceased occupants of a car who died when the driver closed his garage door but continued to run his motor vehicle, the exhaust fumes of which killed the occupants. The Michigan Supreme Court held that the policy exclusion contained in the homeowner's policy was unambiguous and that, although the shutting of the garage door and the operation of the car were concurrent causes of the deaths, the policy expressly intended to exclude those risks arising from the use of a motor vehicle.
National Union contends that the Vanguard reasoning supports its position. It notes that the Vanguard court expressly mentioned that the fumes causing death in Vanguard were produced in the operation of a motor vehicle. Because the fumes causing death in the instant case were not produced by the operation of a motor vehicle, National Union asserts that automobile coverage is inappropriate.
Contrary to National Union's representations, the Vanguard decision does not purport to limit when automobile insurance coverage is available, but says only that the homeowner's exclusion for damages arising out of the use of a motor vehicle includes the deaths by asphyxiation involved in Vanguard. The case essentially is inapposite to the instant case. Moreover, to the extent the Vanguard decision is relevant, it does not suggest that automobile insurance coverage applies only when the automobile is itself the physical cause of the injury. Further, even if the vehicle were required to be a physical cause of the injury, the Vanguard decision expressly recognizes that multiple concurrent causes may exist, contrary to the position of National Union in this case. National Union suggests that the sole cause for the accident was the improper storage of the foam boards in the unventilated trailer. However, here, as in Vanguard, the trailer itself was a contributing cause to the accident, when it allowed the concentration of the dangerous gases. Moreover, those dangerous gases were triggered by the lighting of the cigarette lighter, an action taken by the intended driver of the trailer in preparing to transport the trailer to its intended designation. As a result, Vanguard, to the extent it is applicable at all, suggests that use of the insured vehicle was in fact a concurrent cause of the accident.
National Union also cites Thornton v. Allstate Ins. Co., 425 Mich. 643, 391 N.W.2d 320 (1986), in which a taxicab driver was shot during the course of an armed robbery, while in the insured vehicle. The Thornton court held that coverage was not available under Michigan statutory no-fault personal injury protection. See id.; MICH. COMP. LAWS § 500.3105(1). The Thornton court distinguished between the type of policy provision at issue here, which provides coverage for damages "arising out of the . . . use of a motor vehicle," and the statutory requirement of no-fault personal injury protection for damages "arising out of the . . . use of a motor vehicle as a motor vehicle." 425 Mich. at 658-59, 391 N.W.2d at 326-27 (emphasis in original). The court held that "use of a motor vehicle as a motor vehicle" has a narrower meaning than "use of a motor vehicle," and therefore requires a causal relationship between the vehicular use of the motor vehicle, as opposed to the mere use of the motor vehicle. Thornton, 391 N.W.2d at 327 (emphasis added). See also McKenzie v. Auto Club Ins. Ass'n, 458 Mich. 214, 580 N.W.2d 424 (1998) (again addressing the limiting language of MICH. COMP. LAWS § 500.3105(1) and holding that "use of a motor vehicle as a motor vehicle" is narrower than "use of a motor vehicle" and does not include coverage for use of camper as a sleeping accommodation).
The language of the instant policy, while similar, is slightly different, providing coverage for accidents "resulting from the . . . use of a covered auto."
Moreover, as it did in Pacific, the Thornton court recognized with approval the decision of the court of appeals in Kangas, 64 Mich. App. 1, 235 N.W.2d 42, in which the court held that to trigger coverage, some causal connection must exist between the injury and the ownership, maintenance or use of the automobile. The court held that the relationship did not need to be the proximate cause of the injury, but must be more than an incidental or fortuitous cause and must be foreseeably identifiable with the normal use, maintenance or ownership. The Kangas court held coverage was not available under an automobile policy when an insufficient relationship existed between the use of the vehicle and an assault and battery. Id.
Here, we are not considering intervening intentional or negligent conduct unrelated to the use of the vehicle, as existed in Kangas. Instead, it is undisputed that two-and-one-half days before the accident, Falcon Foam loaded the truck with an order to be delivered to Kentucky. At the same time, it notified the transport company that the order was available for pickup and that it must be delivered within three days. To the extent Falcon Foam was negligent, it was negligent in the loading of the vehicle for transport without providing adequate ventilation. No intervening unrelated act occurred, and the injury happened while the driver was preparing to transport the loaded trailer.
National Union contends, however, that Falcon Foam was using the trailer for mere "storage" rather than as a vehicle. In support of this assertion, National Union argues only that Falcon Foam had no other storage facilities and that polystyrene boards had been loaded onto the trailer two to three days before shipment. National Union cites to no evidentiary support for its theory. Other than argument by National Union, no evidence suggests that the boards were being stored. Instead, the undisputed facts are that Falcon Foam did not generally manufacture and keep stock of its product, but that it produced product only in accordance with specifications on a particular order for delivery at a particular time. Thus, the alleged "storage" was simply the loading of the vehicle in preparation for the shipment of an order.
Moreover, National Union cites no case supporting the notion that a vehicle may lose its status as a vehicle if loaded for transport a few days before it is actually transported. The closest case cited by National Union is a decision by the Louisiana Court of Appeals, in which a trailer was used to haul a 500-barrel "Frac" tank used in connection with drilling operations. See Americas Ins. Co. v. Reliance Ins. Co., 736 So.2d 256 (La.App. 1999). The Frac tank was loaded on the insured trailer and hauled to a site, where both trailer and tank were left to be used in drilling operations. In Americas, not only was the trailer not in transit and not hooked to any other vehicle at the time of the incident, but also the tank "had not been recently transported to the site of the accident to be either loaded or unloaded. Its function at the accident site was more akin to a storage tank than to a mobile trailer." Id. at 260.
Here, in contrast, the trailer was loaded in preparation for transport and the accident occurred when the Fisks were getting the bill of lading prior to hitching and transporting the trailer. At the time of the accident, the triggering events were taken in direct relation to the intended use as a transportation vehicle. Neither Falcon Foam's alleged negligence nor the Fisks' conduct were unrelated to the use of the vehicle. Moreover, unlike in Americas, the insured trailer in the instant case did not serve as a semi-permanent set of wheels for a tank so that it could be brought to and kept at a site for use in drilling. Instead, the trailer was loaded with an individual shipment of product for transport to its ultimate destination, where it would be unloaded, so that the trailer could be used again. The Americas case is not on point.
Since automobile policies must be construed strictly against the insurer, see Nickerson v. Citizens Mut. Ins. Co., 393 Mich. 324, 224 N.W.2d 896 (1975), and since the case law and undisputed facts strongly suggest that the accident bore a causal relationship to the use of the trailer as a transportation vehicle, I am satisfied that under Michigan law, the National Union automobile policy provides coverage for the accident.
Moreover, under Ohio law, the result would be the same. Ohio, like Michigan, provides a liberal interpretation of what constitutes "ownership, maintenance or use" of an automobile:
In the context of automobile liability insurance, ownership, maintenance, or use merely correspond to the element of control necessary to demonstrate potential liability. In that regard, "[a]ny exercise of control over the vehicle constitutes a use, regardless of its purpose, extent, or duration." 8 COUCH ON INSURANCE, Section 119:37, p. 119-57 (3d ed. 1997). "[C]ourts have made it clear that the term `use' has a broad meaning and that the term serves as a catchall provision." APPLEMAN, INSURANCE LAW AND PRACTICE, § 4316, p. 341. Furthermore, courts have set forth some basic guidance in determining what constitutes `use' by declaring that the term `use' has a broader meaning than the word `operate.' Id., at 343.Grange Mut. Cas. Co. v. Darst, 129 Ohio App.3d 723, 726-27, 719 N.E.2d 24-26 (1998) (holding that coverage available for negligence of vehicle driver in parking a vehicle and leaving it briefly unattended, during which time twin boys injured after lighting match found in vehicle).
National Union, however, cites a number of Ohio cases involving claims for automobile insurance coverage for criminal or negligent actions taken by individuals that were unrelated to the operation of the vehicle. See, e.g., Lattanzi v. Travelers Ins. Co., 72 Ohio St.3d 350, 650 N.E.2d 430 (Ohio 1995) (insured who was kidnaped while in her automobile but who was injured when outside and away from the vehicle is not covered under automobile insurance policy); Howell v. Richardson, 45 Ohio St.3d 365, 544 N.E.2d 878 (Ohio 1989) (holding that bodily injury to an insured who was injured by the discharge of a firearm when outside his vehicle is not encompassed by automobile insurance policy); Kish v. Central National Ins. Group of Omaha, 67 Ohio St.2d 41, 424 N.E.2d 288 (Ohio 1981) (holding that shotgun slaying of insured did not "arise out of the ownership, maintenance or use" of a vehicle because the chain of events leading to the accident was broken by the intervention of an event unrelated to the use of the vehicle); Carter v. Burns, 90 Ohio App.3d 787, 630 N.E.2d 767 (Ohio App. 1993) (motorist, whose car was chased by police until colliding with police vehicle and who then ran away and was injured while being wrestled to the ground, was not injured during use of an automobile for purpose of automobile coverage). National Union contends that these cases stand for the proposition that under Ohio law, for coverage to be found under an automobile insurance policy, the automobile must be the "injury-causing instrumentality" of the accident in question.
The cases cited by National Union are entirely distinguishable from the instant case. In each, the Ohio Supreme Court addressed circumstances in which intervening acts by others, unrelated to the operation of a motor vehicle, broke the chain of events related to the ownership, maintenance or use of the automobile. Contrary to National Union's assertions, the cases are consistent with similar Michigan cases and do not mandate the application of an "injury-causing instrumentality" test.
For example, in Kish, the court considered a situation in which an insured, having been involved in an automobile accident, left his car and approached the other vehicle. The uninsured driver of the other vehicle discharged his shotgun, killing the insured. The Kish court was asked to determine whether the damages resulted from an accident that arose out of the "ownership, maintenance, or use" of an uninsured vehicle and whether uninsured motorist coverage carried by the insured provided coverage for the damages. Although the Kish court referred to the "injury-causing instrumentality," it did so in distinguishing that case from one in which, under an uninsured motorist provision, an insured may recover when killed by the operation of a motor vehicle as opposed to the discharge of a shotgun. The Kish court merely noted that the insurer did not dispute that when the motor vehicle itself is the "injury-causing instrumentality," the accident unquestionably occurs during the "use of the uninsured vehicle under the terms of the policy." 67 Ohio St.2d at 51, 424 N.E.2d at 294. The court, however, did not hold that recovery under an automobile policy is only possible when the motor vehicle is the injury-causing instrumentality. Instead, the Kish court expressly held that "[t]he relevant inquiry is whether the chain of events resulting in the accident was unbroken by the intervention of any event unrelated to the use of the vehicle." Kish, 67 Ohio St.2d at 50, 424 N.E.2d at 294.
The same inquiry has formed the basis for the remaining decisions cited by National Union. See, e.g., Howell, 45 Ohio St.2d at 368-69, 544 N.E.2d at 883-84 (relying on Kish to hold that bodily injuries caused by insured's discharge of a firearm through windshield of second driver's car did not result from the "ownership, maintenance or use" of the vehicle); Lattanzi, 72 Ohio St.3d at 353, 650 N.E.2d at 432 (where a tortfeasor has caused an injury, the question becomes what instrumentality was used); Carter, 90 Ohio App. at 791, 630 N.E.2d at 769-70) ("'The relevant inquiry is whether the chain of events resulting in the accident was unbroken by the intervention of any event unrelated to the use of the vehicle'") (quoting Kish, 67 Ohio St.2d at 50, 424 N.E.2d at 294). See also Grange Mutual, 129 Ohio App.3d at 727, 719 N.E.2d at 27. ("The issue is not whether the vehicle itself was the instrumentality of the underlying injuries. Rather, the issue is whether the operator's ownership, maintenance, and use of the vehicle was.") All of the decisions cited by National Union depend on circumstances in which there exists an intervening cause of the injury unrelated to the ownership, maintenance or use of the vehicle.
The instant case, in contrast, does not involve an intervening act unrelated to the use or operation of the vehicle. Instead, the alleged negligence raised by National Union involves the careless loading of polystyrene boards into an unventilated trailer in preparation for shipment. In such circumstances, the negligence directly involves the use of the trailer as a transportation vehicle.
See, Carter, 90 Ohio App. at 791, 630 N.E.2d at 769. It was not an act "`wholly disassociated from and independent of the use of the vehicle as such.'" Carter, 90 Ohio App. at 791, 630 N.E.2d at 770 (quoting Kish, 67 Ohio St.2d at 50, 424 N.E.2d at 294).
The case, therefore, is more similar to that in Nationwide Ins. Co. v. Auto-Owners Mut. Ins. Co. ("Nationwide "), 37 Ohio App.3d 199, 525 N.E.2d 508 (1987). In Nationwide, the court held that the ejection of shotgun shells into the bed of a truck constituted a "loading" of the auto. 525 N.E.2d at 508-510. Because the firearm was required by statute to be unloaded before the vehicle could be driven, the court held that the relationship between the act of unloading the firearm and using the vehicle was sufficient to establish that the accident occurred during the "use" of the vehicle.
No dispute exists that the Fisks were in or next to the vehicle solely for the purpose of identifying the load and obtaining the bill of lading required by law to be in the truck. The causal connection between the actions taken to use the trailer for its transportation purposes and the accident is extremely close and no intervening act occurred. Applying the analysis of Nationwide, the damages occurred during the "use" of the covered vehicle. Id.; see also State Automobile Mitt. Ins. Co. v. Rainsberg, 86 Ohio App.3d 417, 621 N.E.2d 520 (1993) ("It is sufficient if the use is connected with the accident or the creation of a condition that caused the accident. The consensus is that the issue is not one of proximate cause but the requirement of some causal relation or connection."); Nationwide Mut. Ins. Co. v. Wright, 70 Ohio App.3d 431, 591 N.E.2d 362 (1990) (automobile "in use" when gun held by insured accidentally discharged as insured was getting out of vehicle).
Finally, Ohio, like Michigan, construes insurance coverage provisions liberally, resolving ambiguities in favor of the insured. See Nationwide, 37 Ohio App.3d at 202, 525 N.E.2d at 510. Where, as here, the insurer has not clearly excluded coverage for particular conduct, the policy shall be interpreted in favor of the insured. Id.
Accordingly, under either Michigan law or Ohio law, the injuries at issue occurred during the use of the vehicle.
III. CONCLUSION
For the stated reasons, the motion for summary judgment filed by defendants Owens Corning and Falcon Foam (dkt # 54) and the concurrence filed by Gulf Insurance (dkt # 56) are GRANTED. The motion for summary judgment filed by National Union (dkt #57) is DENIED.
ORDER
In accordance with the opinion filed this date, IT IS ORDERED that the motion for summary judgment filed by defendants Owens Corning and Falcon Foam (dkt # 54) and the concurrence filed by Gulf Insurance (dkt # 56) are GRANTED. The motion for summary judgment filed by National Union (dkt #57) is DENIED.
IT IS FURTHER ORDERED that this case is hereby dismissed with prejudice.